Australian Religious Discrimination Bill 2019: a cloak to permit lawful discrimination against sexuality & gender-diverse people

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Nathan Eastwood
Clifford Chance, Sydney^[1]
nathan.eastwood@cliffordchance.com

Presently, the Australian Parliament is considering the Religious Discrimination Bill 2019 (Cth) (‘the Bill’). The intention of the Bill is to protect people from discrimination on the ground of religion and is to be based on other federal anti-discrimination laws, such as the Sex Discrimination Act 1984 (Cth), the Age Discrimination Act 2004 (Cth) and the Disability Discrimination Act 1992 (Cth). However, the Bill significantly departs from the level of well-established protections available in Australia on the ground of religion and seeks to introduce far-reaching and further protections on the ground of religious belief and expression that is above and beyond the standard in other federal anti-discrimination laws. The protections contained in the Bill prioritises the freedom of religious expression over other established human rights such as the right not to be discriminated against on the grounds of race, sex, sexual orientation, disability, or age. Discrimination that could be considered protected and lawful under the Bill include statements about:

• the unnatural or sinful nature of homosexuality, and the fact that it is a curse or punishment from a deity;
• children being born out of wedlock being the result of sin;
• mental illness being a result of evil spiritual influence; and
• the perfect nature of men and women created by God, and therefore the unnatural nature of people having a trans experience.

These statements create an environment in which people of diverse sexualities and genders feel excluded and unsafe, which can lead to negative social and health outcomes, for individuals and more broadly, for specific populations.^[2] The Bill, in its current form, is a cloak to lawfully discriminate against sexuality and gender-diverse Australians based on a religious belief and has no place in modern day Australia.

As the ongoing debate regarding the Bill continues in Australia, this article seeks to remind the Australian Parliament of well-established international law obligations to refrain from prioritising the protection of freedom of religious expression over other human rights, including the right not to be discriminated against on the basis of sexual orientation and gender identify. However, before outlining Australia’s international law obligations it is important to understand the background surrounding the introduction of the Bill.

Background

The Bill is a direct result of the dispute between Israel Folau, a former professional rugby player and devout Christian, against his former employer Rugby Australia. The dispute arose after Rugby Australia terminated Mr Folau’s employment contract after Mr Folau posted the following post to his social media account:

Figure 1: Instagram: izzyfolau

The post and others before it, made various remarks, including that homosexuals would go to hell. Mr Folau also claimed that the fatal bushfires in the Australian summer of 2019/2020 were God’s punishment for Australia legalising same-sex marriage.^[3] Rugby Australia considered that Mr Folau’s comments breached his employment agreement, specifically Rugby Australia’s Player’s Code of Conduct. Mr Folau commenced proceedings in the Federal Circuit Court of Australia against Rugby Australia claiming damages totalling AU$14m for wrongful dismissal.

The dispute between Mr Folau and Rugby Australia was ultimately settled out of court, however the dispute became the test case in Australia for religious freedom of expression and following the dispute the Australian Government sought to introduce the Bill.

Australia’s obligations under international law

In considering the lawfulness of the Bill it is imperative that the Australian Parliament considers the Bill in light of Australia’s international law obligations. Applicable obligations with respect to the Bill are contained in the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESAR) and other international human rights treaties. These treaties provide:

• the right to equality and non-discrimination on the basis of religion as well as other grounds such as race, sex and ‘other status’ including sexual orientation;
• freedom of religion and belief (including to manifest one’s religion or belief);
• freedoms of opinion and expression; and
• the right to the enjoyment of the highest attainable standard of health.

A well-established principle of international human rights law is that human rights are interrelated, interdependent and indivisible.^[4] International human rights law also recognises that certain human rights are absolute, and no limitation upon them is allowed. For all other human rights, limitations may be imposed, when certain strict standards are met. By way of example, the right to freedom of thought, conscience and religion, and the right to hold opinions, are absolute. On the other hand, the right to manifest one’s religion or the right to freedom of religious expression can be subject to limitations. For example, the freedom to manifest one’s religion may be subject to limitation as indicated in Article 18(3) of the ICCPR – that is, as ‘prescribed in law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. The freedom of expression also carries with it ‘special duties and responsibilities’.^[5] The freedom may also be subject to restrictions but only as are provided by law and are necessary to protect others’ rights and reputations, national security, public order, public health or morals.^[6]

An important feature in Article 18 of the ICCPR is the distinction between having a religious belief and its manifestation, the first being an absolute right, the latter being a right open to limitations. The manifestation of a religion or belief is considered to include: (i) worship; (ii) teaching of those beliefs; and (iii) observance of religious rituals. Importantly, as noted above, under international law, manifestation is not an absolute right ‘as such activities can interfere with the rights of others, or even pose a danger to society’.^[7]

Under international human rights law, where limitations on rights are permissible, consideration must be given to the principle of whether such limitations are justifiable. While freedom of religion and expression are fundamental human rights and should be protected by law, they should not be protected at the expense of other rights and freedoms. Equally, there is also a fundamental right of each individual to respect for their person and dignity on the basis of equality. Any limitation on that right must be clearly shown to be both: (i) necessary; and (ii) proportionate.^[8]

In the event of a tension between conflicting rights, it is a well-established principle of international law to use a mechanism of proportionality to balance these tensions. In general, a state must only interfere with a person’s rights if the interference is proportionate to the legitimate aim pursued.

Conclusion

In considering the Bill, the Australian Parliament must consider Australia’s international law obligations under the ICCPR and the ICESAR and general principles of international human rights law. This requires the Australian Parliament to: (i) identify the legitimate aim pursued; and (ii) demonstrate why it is both necessary and proportionate to interfere with the right to equality and non-discrimination on the basis of sexuality orientation in favour of the right to manifest one’s religion.

In the author’s opinion, the legitimate aim of ensuring: (i) the right to religion; and (ii) manifestation of a religion can be achieved without interfering with the right to non-discrimination on the basis of sexual orientation. The Bill is neither necessary nor proportionate. In adopting the international law test of proportionality, it is clear that an individual can manifest their religion in the form of (i) worship; (ii) teaching of those beliefs; and (iii) observance of religious ritual without being permitted to lawfully discriminate on the basis of sexual orientation. The Bill in its current form goes beyond protecting an individual’s right to religion and manifestation of that religion. The Bill is a cloak to protect those that would, in other circumstances, engage in unlawful conduct by discriminating against those on the basis of sexual orientation and gender identity.

Australia must reconsider the necessity of the Bill in light of the serious interferences that will result if the Bill proceeds in its current form. The danger the Bill may have on the health and wellbeing of the sexuality and gender diverse community in Australia is hard to overstate.